We regularly advise liquor licence holders in Queensland on how to promote their licensed business without contravening the restrictions placed on licensees by Section 142ZZC of the Liquor Act. Recent communications from OLGR suggest there may be a change in how this section will be interpreted, adding to the already complicated process of deciding whether or not your advertising and promotions are acceptable.

To help you navigate the minefield that is Section 142ZZC we have drawn up a decision making tool for you to use. Please bear in mind that this is a general tool only and may not take into account all the factors associated with your planned advertisement or promotion. If you require specific advice, please call our office on 07 3252 4066.

Feel free to distribute this tool to friends and associates if you think it is useful.

Most involved in the exciting world of liquor licensing would be aware that a few years ago the government started a process of integrating the liquor and gaming licensing functions into a single operational unit, which we now know as the Office of Liquor and Gaming Regulation. One of the significant challenges, as far as I can tell at least, has been the integration of the computer databases and systems for the two regulatory areas. The winner of the Liquor vs Gaming IT battle was of course (?) Gaming, and licensing processes and data was subsequently transferred over to something called the “COGS” system. I don’t know what COGS stands for. I suspect the “S” might stand for “system” which of course makes calling it the COGS system incorrect (think PIN number, ATM machine etc etc) but I digress.

One of the very awkward consequences of the change over has been the loss of the active not trading” licence category. Back in the day we had licences which were “dormant”. Then we progressed to “active not trading” instead, to go with a number of other classifications – “active trading, “cancelled” and importantly “suspended”. It is the last one, and its substitution for the active not trading category which is causing the problems. To clarify, if OLGR were, pre-COGS, erm… system, advised that a premises had stopped trading, then sensibly the licence status was changed to “active not trading”. Anyone enquiring about the licence, or searching the details would see this and understand that although the licence remained active (so NOT suspended or cancelled) the premises were closed at least temporarily. Post COGS, these licences are listed as “suspended”, because despite the massive advancements in computer technology over the last blah blah etc there is no room for the active not trading category any more.

So here’s the problem. The only way a licence can be legally suspended is via disciplinary action – aka a “show cause”. This is a complex procedure involving the giving of notices to anyone with a relevant interest, receiving and considering submissions and so on. It is not possible for a licence to be suspended simply on the basis of advice to OLGR that the place has closed. So an active not trading style suspension is not really a suspension at all. It’s a convenient way of noting the database that premises are closed, but it is not a suspension. A REAL suspension has specific consequences.

The Liquor Act defines a suspension:

138 Effect of suspension
A licence or permit that is suspended ceases to be in force for the period of suspension.

So a wholesaler, for example, cannot legally supply liquor to the licensee. The licensee also commits an offence if they trade while the licence is suspended. The problem with telling the world the licence is suspended when it’s really not is pretty obvious: suppliers, police, certain internal compliance officers and others who are uninitiated in the vagaries of the COGS system are simply going to take the notation at face value and act accordingly.

I’m reliably informed that there at least 400 other things about the COGS system which need attention and are of higher priority. So actually fixing the technology seems to be out. So I guess for the time being it’s a matter of educating as many people as possible and looking for solutions within the existing unsatisfactory system. My suggestion would be to abandon the pretend suspensions altogether. The “not trading” information, whilst useful, can’t be put ahead of correcting the misuse of legal terminology, and the real consequences for the handful of licensees trying to get on with business.

As a practitioner in the liquor licensing field of quite a few years now, I have to admit to finding the current trading hours debate a little strange. At the risk of getting political, reacting legislatively to what are essentially emotional and illogical arguments (whether in the press or elsewhere) rather than looking at the substance of the matter seems more like the behaviour of the previous government than the new one.

I can’t even remember who was in power in 1992 when the current legislation commenced, but as a result of the original drafting of that law, and through subsequent amendments, what we have today actually includes some decent teeth when it comes to trading hours. Even back in 2000 when we took a case (unsuccessfully) to the Liquor Appeals Tribunal arguing for the ability to trade 241 hours the clear legal authority for the hours to be taken away in the event that trading activity lead to problems in the locality was a key argument.

That authority has been used on a number of occasions over the years, and importantly, a number of those decisions have been supported on appeal, reinforcing the power to take action where necessary. In the 2006 decision in the Molly Malones2 case for example, the Tribunal supported Liquor Licensing and Police when they took action to reduce the hours of that premises. The Tribunal found that “the cancellation of the privilege of the extended hours permit”3 was reasonable having regard to the violence which had occurred on a number of occasions. More recently the Normanby Hotel suffered a similar fate when the licensee failed to secure 5am trading in a challenge to a deemed refusal to renew the relevant permit4. The Tribunal was not satisfied that the licensee had “the ability to control the noise and behaviour of the number of persons who could reasonably be expected to be on the premises between 3:00am and 5:00am” due to its findings about the history of problems associated with the hotel.

Recently I heard Clubs Queensland’s Doug Flockhart on radio stating that there were very few 5am traders in the State ? around 100 out of 6,500 premises. Since 2009 and the introduction of substantial licence fees linked to late trading, to the list of those who have lost their late trading privileges for disciplinary reasons we can add a group of licensees who have opted to reduce hours to save costs.

So where does that leave us? Theoretically, we have around 100 operators in the State, each of which runs a tight enough ship not to have drawn the adverse attention of the authorities, and which are financial enough to meet the recurrent costs associated with this industry segment (which include not only higher licence fees but: security personnel, at costs of perhaps $20,000 annually for a smaller venue, and well into 6 figures for the larger ones, top notch surveillance cameras, ID scanners in an increasing number of places as well as penalty rates for staff and so on).

We do not have uniform trading hours in Queensland. We have trading finishing at nearly every hour of the day and night. There’s a licensed restaurant down the road from my place which doesn’t even open for dinner. So the proposed change in hours negatively affects those who have been able to retain 4 or 5am trading, and at the same time provides a benefit to those competing in the same market but with shorter hours. It makes absolutely no sense that a number of the businesses which will benefit from a blanket reduction in trading hours already have reduced hours as a result of poor trading practices.

Ill leave it to others to analyse broader statistics, but anyone who thinks 5am trading per se causes violent behaviour needs to look closely at the times when most of the reported assaults occur. Im unaware of any evidence base which even suggests a causal link, and certainly no logical basis for the view that reducing hours for some of the venues but not others will lead to a reduction in poor behaviour. If you accept that trading hours by themselves do not cause poor behavior, then making changes to those hours becomes nothing more than some kind of social experiment: an experiment which places businesses and jobs at risk.

What Malcolm Turnbull said of the mining super profits tax is apposite to the remaining crop of late trading licensees. He said you dont nobble your front-runners. Doug Flockhart said it made sense “statistically” to bring hours back to 3am. I would have thought the reverse made more sense, whether statistically or otherwise. In circumstances where we have strong and proven legislation around extended trading hours, why should those surviving licensees be effectively targeted in the absence of some real link between their trading activities and problems in the community? What’s completely clear is that in the past, including the relatively recent past, hours have been reduced where there is a proper case for action to be taken. I would defy anyone who suggests that Police and Liquor Licensing are anything other than vigilant in the prosecution of these matters, and it follows that licensees who have retained extended hours must arguably be doing the right thing.

Knowing all this, I’m left bemused that any government would contemplate arbitrarily reducing trading hours. The regime which is in place was created by Government, and comes with its own checks and balances. The competitive water has found its own level. There is simply no case for experimenting with changes in hours when the outcome is likely to be the loss of businesses and jobs for no improvement in behavior.

We regularly receive enquiries from both vendors and purchasers of licensed businesses anxious to finalise the sale before the licence has been transferred.

We have a strong appreciation for the damage which often occurs to the business during the period between contract and settlement. If your contract is subject to a licence transfer, settlement can be delayed by up to 12 weeks, during which the goodwill, staffing arrangement and general wellbeing of the business can suffer sometimes irreparable damage.

Accordingly, we are routinely asked how the purchaser can take over the conduct of the business before the transfer has been approved, without unlawfully selling and supplying liquor. In the past we have developed a range of strategies for clients, such as devising ways for the purchaser to take on a caretaker role in the business prior to settlement. Caution has always been paramount given the risk, not only of severe penalties for unlicensed liquor sales, but closure of the business and potentially adverse findings in relation to the suitability of the purchaser to hold the liquor licence.

On a number of occasions we have succeeded in using the mechanism of the interim authority, which, if granted, authorises the holder to lawfully conduct the business in advance of the licence transfer.

Off the back of these issues we have suggested to OLGR that they consider adopting the system of an optional fast track process used in NSW where a purchaser has the option of taking the risk that the application for transfer will ultimately be refused. As the basis for refusal is largely specific to the history and character of the applicant, those opting for the fast track are rarely taking any genuine risk at all.

Recently we have been given reason to believe there may be a willingness within OLGR management to favourably consider the use of an interim authority as a de facto fast track option. As the process of granting interim authorities, under other circumstances, is well entrenched and requires no legislative amendment, we intend making more frequent use of this strategy in future to avoid the potentially significant damage to the business asset occasioned by the lengthy transfer process.

Hot on the heels of last year’s cost and red tape reduction initiatives arrive a couple more very significant changes to the liquor licensing laws in Queensland. The first one has emerged without any fanfare (so far) and is in fact a brand new licence category: the cafe licence.

Since its inception in 1992 the Liquor Act has stipulated that food in licensed restaurants has to be prepared on premises, and must satisfy the meal definition, specifically, food that:

is eaten by a person sitting at a table, or fixed structure
used as a table, with cutlery provided for the purpose of
eating the food; and

is of sufficient substance as to be ordinarily accepted as
a meal.

What this has meant is that businesses offering other kinds of food – perhaps prepared off site, or less substantial than a traditional meal – have been unable to obtain a liquor licence.

This situation has been resolved now with the acceptance of the provision of ?prepared food? as a principal activity within the Subsidiary On Premises licence class. Cleverly, the OLGR policy-makers have co-opted the prepared food references which appear in the licence fee sections in the Liquor Regulation to create the new class of liquor licence.

The second and more recent change is the announcement this week of adjustments to procedural requirements for low risk applicants – namely restaurants and the new cafe licence.

Provided the licence has standard hours (10am to Midnight), there is no longer a need to produce a Risk Assessed Management Plan, no need to chase the consent of the land lord, and a more streamlined approach to criminal history checks! These changes will benefit both applicants for new licences and licence transfers in the relevant category.